Publication Date

2021

Journal

Drake Law Review

Abstract

This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification. It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism. The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights. It posits the advancement of positive freedom as a morally justifying function of legal punishment.

An entitlement to punishment is a unique, distinctive legal relation. We impose punishment when an offender initiates an ordered sequence of rights- power, claim, duty, power, liability-by means of committing a crime. This sequence ends with the offender's holding both a claim to be punished and a liability for punishment. This pair of legal relations is not a right to punishment, because it is more than a claim with a corresponding duty. To hold this claim and this liability to punishment in tandem, as cognate legal relations, is better described by the more comprehensive term "entitlement." Neither desert nor good consequences is part of this account of how and why we punish. It is enough to say that an offender is entitled to punishment.

Entitlement to punishment is a more accurate and honest description of the reason we punish than either desert or good consequences is. The belief that legal punishment is imposed because and only when it is deserved obscures the extent to which legal punishment is a consequence of moral luck. The word "entitlement" better describes the situation of a person who has entangled himself in criminal law's stringent rules as a consequence of his limited power to overcome unpredictable outcomes, his circumstances, the influences on his character, or his personal history.

Finally, entitlement to punishment reflects the moral salience of criminal law. Entitlement to punishment conveys respect for the rationality of criminal offenders and their capacity for self-determination-particularly when criminal law is cast as a choosing system and as part of a conception of positive liberty centered in autonomy.

Volume

69

First Page

603

Publisher

Drake University Law School

Keywords

punishment, entitlement to punishment, criminal law, choosing system, legal rules, positive freedom

Disciplines

Criminal Law | Criminal Procedure | Jurisprudence | Law

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